These Australian laws need to be put before a jury

Art courtesy of  Renuka Chalk .

Art courtesy of Renuka Chalk.

It’s time that the law itself is put before a jury.

Upon the landing of the First Fleet and the English declaration of terra nullius, the doctrine of reception meant that Australia inherited the common law legal system along with all English law. While this was intended to ensure that settlers in Australia would continue to be obedient citizens, it arguably also enforced laws that would be irrelevant or incongruous in the Australian society. In conjunction, a central tenet of common law legal systems is the need for the judiciary to follow and be bound by precedent. Therefore, reflecting an inability for the law and its enforcers to be proactive and a true representation of evolving community standards. Hello, Malcolm Turnbull, Australia would like its $80.5 million back, and for the Morrison government to stay stable long enough to just listen to us instead.

In January 1901, federation presented a further complication. Each state and territory became equipped with their own slightly different laws, as well as an overarching Commonwealth framework which applied Australia-wide, irrespective of state of residence.

The legislature’s inability to keep pace with the Australian community is especially seen in consideration of the contentions relating to legalising abortion in Australia.

Despite common law countries, for example the United States, providing a source of persuasive precedent such as Roe v. Wade, 410 U.S. 113 (1973), which paved the way for legislative protection, the inability of the Australian legal system to move away from its traditional English roots highlights a discrepancy between itself and the people it governs.

The evident reactive and lagging nature of Australian law calls into question the effectiveness of the current legislative framework; and thus, here are some laws that deserve to be put before a jury.

Summary Offences Act s 21

Queensland, 2005

Feeling lonely, and thinking of luring loved- ones back to you? Or simply want to test some loyalties with a misleading notice of death, Ross Geller-style? Think again. While Ross and Chandler may have gotten away with advertising and holding a fake memorial service for an obviously alive palaeontologist, if they tried to pull that stunt in Queensland, they’d be slapped with either a $1305 fine, or six months in the slammer. However, this does not limit those who have been inspired by Gina Linetti’s antics. Feel free to call up your loved ones to gauge their reaction of your passing - just don’t make it well known. The same penalty applies if one is found to have broadcasted a phony birth, marriage or new job.

Yet, why stop there? Phony advertisements or notices should be criminalised altogether – everything from Rapunzel hair-inducing blue gummy bears, to lollipops fulfilling weight loss dreams.

Marketing of Potatoes Act s 22

Western Australia, 1946

This Act makes it illegal to be in possession of more than 50 kilograms of potatoes in Western Australia, unless you have purchased the potatoes from an authorised retailer of the Potato Corporation. If caught, you’ll pay a hefty price for your spud soft- spot – a maximum of $2000 for a first offence, and $5000 for any subsequent offence.

This law may have been relevant during the Great Depression, and with Prime Minister Scott Morrison stuck in a 1930s-mindset, it seems like a mash made in heaven. Looks like Andrew Taylor may be in for some trouble if he ever steps foot into the land of sandgropers.

Summary Offences Act s 17

Victoria, 1966

It appears that the Australian legislature gets a kick out of depriving people of the little joys in life. Section 17 of this Act makes it an offence to sing an obscene song in a public place. Any expletive-laced attempts to become the next king of the Central Tunnel can attract a maximum fine of $1600, or two months in jail. Get caught more than once? The fine and term of imprisonment will increase.

If there is no emotional or physical harm, however, maybe we should let our fellow Drake and Eminem wannabes try to earn some coin and drop some fire mixtapes. Instead of this obscene law, I propose we seek change in society – a change that will outlaw people who lip-sync songs on Snapchat and try to be sexy using the dog-filter.

In all seriousness, Australian legislature is lagging almost as much as its Internet connection. It was only in 2017 that, after a $80.5 million plebiscite, same-sex marriage was legalised – and this only required the switching the words “a man and a woman” to “two people.” The law, much like its enforcers, is meant to serve and protect – and it’s about time that the constitution reflected that.

This article appeared in The Comma’s 2018 Annual Edition. Read more here.

Stephanie Luong is a second-year combined Law/Communications (Social and Political Sciences) student and is most likely asleep right now, or at any given moment really.